Court of Appeal in Northern Ireland Decisions

Neutral Citation No [2012] NICA 12	Ref:	GIR8490
Judgment: approved by the Court for handing down	Delivered:	15/05/12
(subject to editorial corrections)*


 


IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND ________ ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND ________ QUEEN'S BENCH DIVISION (JUDICIAL REVIEW) ________ IN THE MATTER OF AN APPLICATION BY JOHN FINUCANE FOR JUDICIAL REVIEW Finucane's (John) Application [2012] NICA 12 ________ Before: Higgins LJ, Girvan LJ and Coghlin LJ _______

GIRVAN LJ (giving the judgment of the court)

Introduction

[1] This is an appeal from an order of Treacy J made on 6 October 2011 whereby he granted an application for judicial review and quashed a decision of the Northern Ireland Legal Services Commission ("LSC") refusing to confirm that legal aid for the representation of Brendan Conway and Eamon Hutchinson ("the accused") by the applicant would be funded at the rates contained in the Legal Aid for Crown Court Proceedings (Costs) Rules (NI) 2005 ("the 2005 Rules") which were in force before the coming into operation of the Legal Aid for Crown Court Proceedings (Costs) (Amendment) Rules (NI) 2011 ("the 2011 Rules"). The applicant, respondent to this appeal, is a solicitor who took over the conduct of the defence of the accused subsequent to 13 April 2011, the date on which the 2011 Rules took effect.

[2] The question raised in these proceedings can be expressed thus:-

"In a case in which a person returned for trial for an indictable offence was granted legal aid for the preparation and conduct of his defence at the trial and had solicitors assigned to him for that purpose prior to 13 April, if a new solicitor is assigned to him on or after that date, do the 2011 Rules apply for the determination of costs payable in respect of work done under the criminal aid certificate or are the costs to be determined by reference to the 2005 Rules?"

The question is of some financial importance to the respondent since it appears clear that the 2011 Rules provide a less generous basis for assessment of the relevant costs.

[3] Mr Scoffield QC appeared for LSC, the appellant in the appeal. Ms Quinlivan QC and Mr Hutton appeared for the respondent. Both the Department of Justice ("DoJ") for whom Mr Swift QC and Mr Coppel appeared and the Bar Council of Northern Ireland ("Bar") for whom Mr Doran appeared had been permitted to join the proceedings down below as interveners and made representations in this court.

Factual background to case

[4] On 11 March 2010 the accused were returned for trial by District Judge (Magistrates' Courts) Bagnall on charges of kidnapping, robbery, carrying a firearm with criminal intent and false imprisonment. On the same date the court granted both accused legal aid certificates for solicitor and two counsel under Article 29 of the Legal Aid, Advice and Assistance (NI) Order 1981 ("the 1981 Order"). Kevin R Winters, Solicitors, represented both defendants and was assigned as their solicitors on the legal aid certificates. The respondent, Mr John Finucane, was at that time a solicitor employed by Kevin R Winters.

[5] On 13 April 2011 the 2011 Rules came into operation and changed the remuneration rates for legal practitioners representing defendants in the Crown Court in Northern Ireland. Rule 3 of the 2011 Rules provided:

"(1) Subject to paragraph (2), these Rules apply for the determination of costs which are payable in respect of work done under a criminal aid certificate granted under Article 29 [of the 1981 Order] … on or after 13th April 2011.

(2) The Legal Aid for Crown Court Proceedings (Costs) Rules (Northern Ireland) 2005 continue to apply as if these Rules had not been made in respect of cases in which a criminal aid certificate was granted under Article 29 [of the 1981 Order] … before 13th April 2011."

[6] On 12 May 2011 the respondent left the employment of Kevin R Winters and set up his own legal practice of Finucane and Toner, Solicitors, in partnership with Ciaran Toner.

[7] On or about 14 May 2011 both defendants instructed the applicant that they wished him to represent them rather than Kevin R Winters, Solicitors. On 20 May 2011, Senior Counsel appeared in the Crown Court before His Honour Judge Devlin and applied for legal aid to be "transferred" to Finucane and Toner, Solicitors. The learned judge acceded to the application and new legal aid certificates were issued assigning Finucane and Toner, Solicitors.

[8] The respondent corresponded with the LSC seeking confirmation that both he and counsel would be paid under the existing rates contained in the 2005 Rules prior to the 2011 Rules changes. The LSC stipulated that since the legal aid certificate assigned to the applicant was issued after 13 April 2011 the 2011 Rules applied to it. The respondent made representations to the judge who made a new order purportedly replacing the legal aid certificates issued on 20 May 2011 and amending the original certificates (although new 'amended' certificates were issued).

[9] By letter dated 13 June 2011 the LSC again said that the applicant would be paid under the 2011 Rules.

[10] By Order 53 Statements dated 4 July 2011 the applicant sought, inter alia, orders of certiorari and mandamus to bring up and quash the decisions of the LSC and to direct the LSC to confirm that the respondent would be paid under the existing 2005 Rules rates.

Statutory Framework

[11] So far as is relevant Article 29 of the 1981 Order provides:

(1) Any person returned for trial for an indictable offence ……. shall be entitled to free legal aid in the preparation and conduct of his defence at the trial and to have solicitor and counsel assigned to him for that purpose in such manner as may be prescribed by rules made under Article 36, if a criminal aid certificate is granted in respect of him in accordance with the provisions of this Article.

(2) Subject to the provisions of this Article, a criminal aid certificate may be granted in respect of any person-

(a) by a magistrates' court, upon his being returned for trial; or

(b) by the judge of the court before which he is to be tried, at any time after reading the depositions taken at the preliminary investigation or, as the case may be, the written statements tendered, and any depositions taken, at the preliminary enquiry, or

(c) …………….

and such court or judge is in this Part referred to as "the certifying authority".

(3) A criminal aid certificate shall not be granted in respect of any person unless it appears to the certifying authority that his means are insufficient to enable him to obtain such aid, but where it so appears to the certifying authority, that authority-

(a) shall grant a criminal aid certificate in respect of any person returned for trial upon a charge of murder; and

(b) may grant a criminal aid certificate in respect of any person returned for trial upon any other charge if it appears to the certifying authority, having regard to all the circumstances of the case (including the nature of the defence, if any, as may have been set up), that it is desirable in the interests of justice that he should have free legal aid in the preparation and conduct of his defence at the trial.

(4) ……….

(5) ………...

[12] So far as material Article 36 provides:

(1) In any case where a criminal aid certificate has been granted in respect of any person, the expenses properly incurred in pursuance of that certificate including the fees of a solicitor and, where counsel has been assigned, of counsel, shall be defrayed out of moneys provided by the Assembly, subject nevertheless to any rules made under this Article and to any directions as to the vouching of payments and the keeping of accounts, records or receipts which may be given by the Department of Finance and Personnel in Northern Ireland.

[13] Rule 2 of the Legal Aid (Defence Certificates) Rules 1966 provides:

(1) A defence certificate granted by a Magistrates' Court shall be in form A(i) or A(ii) in the Schedule, and the clerk of petty sessions shall, as soon as practicable after the certificate has been granted, send a copy thereof to the chief clerk, the Director of Public Prosecutions and the Secretary of the Legal Services Commission.

(2) A defence certificate granted by a Judge shall be in form B(i) or B(ii) in the Schedule and the chief clerk shall send a copy thereof to the Director of Public Prosecutions and to the Secretary of the Legal Services Commission.

(3) A certifying authority shall, when granting a defence certificate, after taking into account any representations which the person charged may make, assign to him, from the register maintained in pursuance of Rule 1 of the Legal Aid Certificates Rules (Northern Ireland) 1966 a solicitor, to whose services the person shall be entitled.

(4) Where the charge is one of murder, or the case appears to present exceptional difficulties, a certifying authority may certify that in its opinion the interests of justice require that the person charged shall have the assistance of two counsel.

(5) The chief clerk shall furnish to the solicitor assigned as aforesaid a copy of the depositions in the case and, if the complaint is in writing, of the complaint.

(6) Any member of the Bar whose name appears in the register maintained in pursuance of Rule 2 of the Legal Aid Certificates Rules (Northern Ireland) 1966 may be instructed, on behalf of the person charged, by the solicitor assigned as aforesaid, and, in any case in which a certifying authority has given a certificate as provided for in paragraph (4), one such member of the Bar and a member of the Bar, being one of Her Majesty's Counsel who has expressed his willingness to undertake the defence, may be so instructed. Any member of the Bar instructed as aforesaid for the purposes of these Rules, be regarded as having been assigned in pursuance of a defence certificate.

[14] The prescribed forms of defence certificates provide for the granting of the defence certificate and the assignment of a named solicitor to the accused in the same document and apparently at the same time.

Decision at first instance

[15] Treacy J considered that that Article 29 of the 1981 Order conferred two distinct powers on the judge: (a) to grant a criminal aid certificate and (b) to assign legal representatives. He concluded that there was no reason why section 17(1) of the Interpretation Act (NI) 1954 could not be relied on to authorise the power to assign solicitors from time to time. The judge said that it was common case, as held by Higgins J in R v Lees [2003] NIJB 17, that a certificate enures for the benefit of the defendant and not his lawyers. In the instant case, therefore, since the certificate has already been granted to the defendant there was no good reason why the assignment of a new solicitor should require a fresh grant and therefore a new certificate. Treacy J also referred to the Rule 2(6) of the 1966 Rules which provide that "Any member of the Bar instructed … shall, for the purpose of these Rules, be regarded as having been assigned in pursuance of a defence certificate". The judge agreed with the respondent's argument that if the LSC's argument was correct an absurdity would be created and lead to the illogical situation whereby counsel could be changed under a certificate but not a solicitor. Thus, counsel's fee would be determined by the 2011 Rules rather than the 2005 Rules simply because the solicitor changed. The judge noted the affidavit evidence which referred to three instances whereby High Court Judges amended certificates, previous instances whereby the LSC directed payments under existing Rules despite the amendment of the certificate and the LSC's failure to amend the Rules to communicate a material change in the interpretation of the Rules, and concluded that "the statutory framework does not … impel the conclusion that assignment of a new solicitor can only be achieved by the grant of a new certificate … [to] hold otherwise would produce illogical and absurd results." Having reached that conclusion, Treacy J found it unnecessary to adjudicate on an alternative argument put forward by the appellant that the transitional provisions in Rule 3(2) of the 2011 Rules mean that the 2005 Rules apply in any event.

The parties' submissions

[16] Counsel for the LSC and DoJ contended that there is no separation between the granting of the defence certificate and the assignment of a solicitor. They are simultaneous in accordance with the 1966 Rules which require the assignment to occur "when granting a defence certificate". Furthermore, the 1966 Rules require the certificate to be in the Form provided. The prescribed form requires the solicitor to be assigned. Such a construction is supported by the 'deeming' provision in the 1966 Rules in relation to counsel which is not copied for solicitors. Moreover, there is no provision to "amend" a certificate so as to re-assign a new solicitor (R v Winward). The appellants also contended that R v Walsh was wrongly decided and note that it failed to properly consider R v Winward. They submit that their interpretation does not lead to the absurdity envisaged by the judge due to the deeming provision in the 1996 Rules relating to counsel. The DoJ argued that Rule 3(2) should be given a purposive interpretation and was intended to make clear that work done under a pre-13 April certificate should be funded under the 2005 Rules whereas work done thereafter on foot of a new certificate should be funded under the 2011 Rules.

[17] Counsel for the respondent submitted that the grant of a legal aid certificate is made for the benefit of the individual defendant and is a form of social welfare provision. The grant of the certificate entitles the defendant to (i) free legal aid in the preparation and conduct of his defence and (ii) the assignment of solicitor and counsel. In those circumstances the assignment of solicitor and counsel is "a means to an end". She contended that Rule 2(3) of the 1996 Rules breaks down the assignment into three phrases: (1) the granting of the certificate; followed by (2) the taking into account representations from the defendant; followed by (3) assignment of a solicitor. Furthermore, each phase is separate and "temporally distinct" otherwise the judge would be unable to take account of representations as required by phase (2); an issue which the appellants' "simultaneous" grant and assignment argument fails to address. She submitted that that the decision in R v Walsh supports such a contention. Counsel also adopted the argument put forward by the Bar Council in relation to the proper approach to Rule 3(2).

[18] The Bar Council's argument focused primarily on the transitional provisions in Rule 3 of the 2011 Rules. It emphasised that Rule 3(2) stipulates that the existing 2005 Rules apply where "a" certificate rather than "the" certificate has been before 13 April 2011. Thus, on a simple construction of the 2011 Rules, so long as "a" certificate is granted before 13 April 2011 in relation to a case then any subsequent certificates granted in the same case also fall within the 2005 Rules.

The Rule 3(2) argument

[19] We conclude that the argument put forward on behalf of the Bar Council on which the respondent relies is correct. As a matter of straightforward interpretation Rule 3(2) clearly applies to "cases" in which a criminal aid certificate was granted prior to 13 April 2011. In such cases work done under a criminal aid certificate is payable under the rules set out in the 2005 Rules. Rule 3(2) cases are a statutory exception to the new rule stated in Rule 3(1) that the lower 2011 scale applies to cases covered by a certificate granted after the relevant date. The introductory words "subject to paragraph (2)" clearly indicate that Rule 3(2) creates a special class of case which will continue to be funded under the more generous 2005 scale. The term "case" is defined in the 2005 Rules as referring to Crown Court proceedings in respect of trials on indictment which are the subject of a criminal aid certificate. That definition was not affected by the definition provision in the 2011 Rules which modified some other definitions in the 2005 Rules so far as the 2011 Rules applied. The cases of Conway and Hutchinson were such proceedings. We cannot accept the argument put forward by the DoJ that Rule 3(2) should be read as subject to an implication that it is intended only to apply to cases in which there is an extant criminal aid certificate issued prior to the relevant date still in place as the only operative certificate or was only intended to simply confirm that work done under a pre-13 April certificate is payable at 2005 rates. Whatever intention the draftsman may have had the wording adopted is clear and produces a simple and workable outcome, namely that in a case in which a certificate was granted before the relevant date the 2005 Rules will govern the assessment of the costs even if at a later time a new certificate is granted substituting a different solicitor as the assigned solicitor.

[20] This conclusion effectively disposes of the appeal and renders it strictly unnecessary to reach a conclusion on the question whether, in the event of a new solicitor being assigned to a legally aided defendant, it is necessary for the court to grant a new criminal aid certificate or whether the court may amend the pre-existing certificate. Since this issue was the focus of much of the argument in the case and since the question is one in respect of which there has been a division of judicial views and differing practices adopted a definitive conclusion by this court on the question would clearly assist lower courts and practitioners. A consideration of the views expressed by lower courts may help to identify the nature of the differing viewpoints.

The relevant case law

[21] In R v Winward [1997] NIJB 187 when the defendant's trial was about to commence the solicitor and counsel assigned under the legal aid certificate informed the trial judge, McCollum LJ, that their instructions had been withdrawn. The defendant indicated to the court that he wished to have alternative solicitors and counsel represent him. McCollum LJ noted that neither the 1981 Order nor the rules governing the issue of defence certificates made provision for the discharge or amendment of a defence certificate. Section 17(1) of the Interpretation Act (NI) 1954 provides that where an enactment confers a power or imposes a duty, the power may be exercised and the duty shall be performed from time to time, as occasion requires. The judge concluded that when for any reason a defence certificate ceases to serve the purpose for which it was granted the court is empowered section 17(1) to exercise its powers "to issue a new certificate". In the circumstances of the case the court granted a "further defence certificate".

[22] In R v Lees [2003] NIJB 17 the defendant pleaded guilty to all charges on the indictment. At a subsequent hearing of the case, it was indicated to the court that the defendant wished to vacate his plea and he had purported to instruct a new solicitor. The new solicitor appeared before the court and asked for the legal aid certificate to be "transferred". Higgins J observed that the relevant Rules do not make provision for the transfer of a certificate from the assigned solicitor to another nor do they make provision for the assignment of another solicitor. He noted that a legal aid certificate is granted to the defendant personally and not to or in respect of a solicitor, saying that it seemed tolerably clear that the certifying authority has power to grant a criminal aid certificate in respect of a person for the preparation and conduct of his defence at trial and to assign solicitor and counsel to that person for that purpose. In those circumstances, he viewed "transfer" as being a misnomer and that what is meant or intended by such an application is that "a different solicitor be assigned to the person charged". The judge also noted that, whilst the practice was to assign to the defendant a solicitor or counsel of his choice, the defendant could not demand or require the judge to assign a particular solicitor or counsel. In the circumstances of the case Higgins J concluded that the solicitor assigned in the defence certificate would remain so assigned.

[23] In R v Walsh (No.2) [2011] NICC 30 the defendant was committed for trial and granted a legal aid certificate on 12 May 2010. Before her trial commenced, the defendant instructed new solicitors who made a request for "transfer" of legal aid which was granted by Hart J on 6 May 2011. Hart J was asked to clarify his order of 6 May 2011 given the impact it may have in relation to whether the new solicitors would be paid under the 2005 Rules or the 2011 Rules. Hart J analysed the evolution of criminal legal aid in Northern Ireland from its inception under the provisions for the "Defence of Poor Persons" in the Criminal Justice Act (NI) 1945, and quoted with approval the approach of Higgins J in R v Lees, before concluding:

"[16] … The distinction between granting a criminal aid certificate to an individual defendant, and then subsequently assigning to that defendant an identified solicitor is not always clearly expressed by judges or practitioners, who frequently refer to "granting a new defence certificate" when the court assigns a new solicitor under a criminal legal aid certificate, and I for one have been guilty of the same lack of clarity in the past. When an application is made by a solicitor who has agreed with a client to take on his case in the Crown Court in place of the solicitor initially assigned by the court, the court does not grant a new criminal aid certificate, but assigns a new solicitor in place of the previous solicitor assigned by the court under the criminal aid certificate which has already been granted. The result is that the original criminal legal aid certificate continues in force, but a different solicitor is substituted for the original solicitor by way of an assignment by the court under the original defence certificate."

The question whether a new criminal aid certificate must be granted

[24] Article 29 of the 1981 Order confers on a defendant a right to free legal aid for the preparation and conduct of his defence and to have a solicitor assigned to him for the purpose in such manner as may be prescribed by rules made under Article 36 if a criminal legal aid certified is granted to him in accordance with that Article. If a solicitor is to undertake work on a legal aid basis he must be duly assigned to the accused by the court and the solicitor's right to be paid is dependent on the existence of a valid certificate assigning him. A certificate, accordingly, is intended to record the entitlement of the defendant to legal aid, to assign the solicitor and to thereby authorise the solicitor to undertake the work if it is to be funded under legal aid.

[25] The wording of Article 29 envisages that a legal aid certificate establishes the defendant's right to legal aid and that that right is made effective by the assignment of a solicitor who can deliver the necessary service to make good the right. It envisages a simultaneous certification of entitlement and assignment of the means to enjoy that entitlement. Article 29(1) makes clear that the assignment of a solicitor and counsel is to be effected in the manner prescribed by rules made under Article 36.

[26] The Legal Aid in Criminal Cases: Defence Certificates Rules prescribe the form of a defence certificate which combines the grant of a defence certificate with the assignment of a named solicitor. Rule 2(3) requires the certifying authority "when granting a defence certificate" to assign a solicitor, pointing to a combined and simultaneous decision making process resulting in the issue of a composite document incorporating the assignment.

[27] For various reasons an assigned solicitor may no longer be able or qualified to act for a defendant. This may be, for example, because of supervening death, ill health, retirement, financial insolvency or some other reason. A person entitled to legal aid must be able to make his right to legal aid effective by having a new solicitor assigned to him. Since the 1981 Order and Rules thereunder do not deal expressly with such a situation it is necessary to imply into the legislation a power so that the court can deal with the situation. Section 17(3) of the Interpretation Act (Northern Ireland) 1954 implies all such powers "as are reasonably necessary to enable (the relevant person) to do that act or are incidental to the doing thereof." The court exercising the powers and duties arising under the 1981 Order and Rules must have an implied power to assign a new solicitor to act on behalf of the legally aided party who otherwise would be unable to benefit from his right to legal aid and to have a solicitor funded to act on his behalf. A new solicitor if he is to be paid must be able to rely on the existence of a certificate assigning him. This necessitates the existence of a certificate showing his assignment.

[28] Since the certifying authority is faced with the difficulty arising from the absence of an express statutory power of assigning a fresh solicitor subsequent to the grant of the original certificate the question arises as to whether the proper and necessary solution to the problem is to grant a completely fresh certificate which assigns a new solicitor (thereby creating a second or subsequent certificate) or to amend the original certificate by substituting the new solicitor or by adding the new solicitor as from the new date of assignment (possibly with a further amendment to show that the original certificate has ceased to be effective in relation to the former solicitor from the new date). If a power of amendment can be implied the amendment route produces a workable and satisfactory outcome. By the same token the issue of a new certificate assigning the new solicitor from the date thereof produces a workable and satisfactory outcome.

[29] Were it not for the provisions of Rule 3(1) of the 2011 Rules the question whether the assignment of a new solicitor necessitates the issue of a new certificate as opposed to the amendment of the original one may appear to be a somewhat technical and arid question of little import. As it is, in view of our interpretation of Rule 3(2), a definitive answer to this question might not appear to be of pressing importance. However, it is an issue which may be of practical importance not least in the present case. The initial order made by the Crown Court judge resulted in the grant of a new certificate. Subsequently he appears to have directed a corrective order affecting an amendment of the original order. If the proper procedure is for the granting of a fresh certificate assigning a new solicitor then no such certificate has been issued because the judge's corrective order must have been made on the basis that his first order did not reflect his true intention. Otherwise his second order would have been made without jurisdiction because he was functus officio having granted a fresh certificate. If the proper route to follow in such a case is by way of the granting of a new certificate then he had no jurisdiction to amend the original certificate.

[30] Miss Quinlivan accepted that a judge has jurisdiction in such a situation to grant a new certificate assigning the new solicitor. We consider that must be a correct concession. The Order and Rules envisage that a certificate both confers entitlement to legal aid and assigns a solicitor. Before a solicitor is assigned it must be clear that the defendant is entitled to legal aid. The certificate is intended to record that fact. When an application is made for a new solicitor to be assigned the way that can be validly done is by the grant of a certificate which the solicitor requires to prove his entitlement to be paid. The only form a certificate can take is in that prescribed by the rules. The issue of a fresh certificate assigning the new solicitor following the prescribed form achieves the purposes of the legislation.

[31] Once it is accepted that the judge must have the power to issue a fresh certificate in such circumstances there is no need to imply a power to amend the original. There is thus no reasonable necessity to imply such as power for the purposes of section 17(3) of the 1954 Act.

[32] To imply a power to amend as an additional alternative power to that of granting a fresh certificate (which can properly achieve the necessary end) would be to create the possibility of conflicting powers as illustrated in this instance. Had we come to a different view on Rule 3(2) and accepted the DoJ's argument a judge would have been faced (as Judge Devlin perhaps considered he was) with the question whether he should grant a new certificate or should amend the original producing different legal consequences. The former course would have resulted in the 2011 Rules applying with one level of remuneration and the latter would have resulted in the 2005 Rules applying. The judge would thus in effect be choosing which level of remuneration he considered should apply. Such a situation could result in different courts on an arbitrary basis undefined by law deciding whether to effectively allow a solicitor to be paid on a more or less generous basis with the real possibility of different judges taking differing views without there being any prescribed legal basis for making the choice. This illustrates the practical need to determine as a matter of legal principle the proper approach to the procedural question whether an assignment of a new solicitor must be affected by the grant of a new certificate or by amendment of the original certificate.

[33] For the reasons we have given we conclude that the proper approach is that stated by McCollum LJ in R v. Winward and that in the future in such cases the certifying authority must grant a fresh criminal aid certificate when assigning a new solicitor in place of a solicitor assigned under an earlier certificate.

Disposal of the appeal

[34] While we have differed from the lower court in our reasoning we conclude that the appeal must be dismissed for the reasons set out in paragraph [19].